The latest battle over “net neutrality” has returned to the federal courts and to the sharply divided perspectives regarding the extent to which the Federal Communications Commission should assert regulatory authority over how internet service providers offer broadband network service.
In August, the Court of Appeals for the 6th Circuit issued a stay that freezes the latest move by the FCC to re-impose a regime that requires ISPs to treat all services they carry equally, akin to the way that more traditional telephone companies have been regulated for nearly a century as nondiscriminatory common carriers. However, it has not yet rendered a decision on the case’s merits, which offers a real opportunity to look at the issue differently.
The recent net neutrality order under appeal is a stark reversal of the FCC’s approach during the Donald Trump administration. Then, the same detailed regulatory approach for broadband instituted late in President Barack Obama’s term, with his explicit blessing, was wiped off the books. This was preceded during the George W. Bush-era by a similar sense of laissez-faire that was in place in the Trump era. Dizzy so far?
Unlike many areas of law and policy where regulatory stability is valued to promote investment, entrepreneurship and innovation, we have seen the FCC engage in a metaphorical ping-pong game for a dozen years. It goes back and forth in outcomes, then inevitably moves on to judges to decide whether the agency acted rationally, with an adequate policy record, in making a decision.
It’s highly unusual for federal regulators to move 180 degrees in such a short time, much less twice. Call it a double flip-flop. Little wonder the federal appeals court has ordered a time-out until it can sort through how thoughtful the FCC has been in its decision-making this time.
The internal thinking at the FCC is best encapsulated by its current chairwoman, Democrat Jessica Rosenworcel, who has strongly led the charge in having the agency carry the net neutrality banner once again. She has argued, “In our post-pandemic world, we know that broadband is a necessity, not a luxury. We know that it is an essential service. And, when a consumer has a problem with it, they should be able to reach out to the Nation’s expert on communications and get the help they need. They should be able to count on a national net neutrality policy that is grounded in the law and history of communications in the United States.”
Rosenworcel also notes that this decision reflects overwhelming nationwide approval — a “broadband provider should not have the right to block websites, slow services, or censor online content. These policies were court-tested and approved. They were wildly popular. In fact, studies show that 80 percent of the public support the FCC’s net neutrality policies and opposed their repeal.”
The opposing perspective has been argued forcefully by Republican Brendan Carr, a proud member of the Trump policy brain trust. “Broadband access is more vibrant and competitive than ever, no matter how you slice the reams of data. Americans benefited from lower prices, faster speeds, broader and deeper coverage, increased competition, and accelerated internet builds.”
“Here’s what the data show. Internet speeds are up 430 percent since 2017 on the fixed broadband side, and they are up 647 percent on the mobile side. In real terms, the prices for internet services have dropped by about 9 percent since the beginning of 2018, according to BLS CPI data. On the mobile broadband side alone, real prices have dropped by roughly 18 percent since 2017, according to BLS and industry data. And for the most popular broadband speed tiers, real prices are down 54 percent, and for the fastest broadband speed tiers, prices are down 55 percent, over the past eight years, according to BLS and industry data.”
In simple terms, net neutrality to Carr is a solution in search of a problem. After all, in his view, the cataclysmic predictions of the internet shutting down after net neutrality was repealed in late 2017 had the same sense of false prophecy that characterized the Y2K panic at the turn of the millennium.
These positions, no doubt, will be vigorously presented when the 6th Circuit hears the net neutrality appeal, and the FCC and the internet service providers face off in court once again. Against this backdrop, perhaps the time is finally right to focus on a broader understanding of what broadband really means and whether Americans are best positioned to reap its benefits in a truly interconnected digital world.
Largely forgotten, the United States has a National Broadband Plan released by the FCC in 2010 under a legal mandate established by Congress. This plan has endured through the Obama, Trump and Biden administrations, and for good reason — it reflects our everyday experiences with online life, which in so many ways has become essential to real life itself. The genius of this plan is that it views broadband as a three-legged stool, or in more current parlance, an “ecosystem.”
Beyond the world of regulatory boxes, this co-dependency among broadband networks, devices, and applications and content gives constant value to our broadband experiences. In short, we need fast, accessible and affordable networks; and smartphones, tablets and laptops that take advantage of these capabilities. Of course, neither of these would make us so immersed digitally without a plethora of attractive apps and access to virtually unlimited online content to serve individual needs.
With this in mind, I began to focus a decade ago on what seems to be the more critical policy goal that those of all political persuasions should view as the real end game — “net vitality.” In simple terms, how well can the United States stimulate broadband internet development to continually benefit American consumers and help our nation prosper in the global marketplace?
Since the internet extends well beyond geographic borders so that we have seamless digital access to the world as never before, shouldn’t we better understand how broadband ecosystem development is happening around the world over time? It may make a genuine difference if you are traveling or living outside the United States or if you are planning to start a digital business or investing in one abroad.
If you want a rich internet experience by accessing the best technology and services wherever they may be, it’s hard to ignore how we must view broadband through a much broader lens than any regulatory approach the FCC is legally enabled to do or is equipped to regulate in practice. Whether regulated or not, net neutrality represents an ironic binary choice that is aimed at directing our digital destiny. It’s focusing on the trees instead of the forest.
The good news is that through three generations of net vitality studies I have undertaken, the United States objectively and consistently has achieved a premier leadership position as a leader in broadband internet ecosystem development.
As litigation continues to perpetuate what seems like an endless debate loop of whether a national net neutrality policy is needed, perhaps this case should mark a new moment in time — when we begin to leverage net vitality instead by focusing on how to continue providing our citizens with access to a digital life that continues to be the envy of the world.
